An offense-based approach towards individual liability in international criminal law

To hold an individual criminally liable for the commission of an international crime it is indispensable to know the exact meaning of his deeds for the perpetration of the international crime as a whole. The significance of criminal acts is, however, not always easy to establish. This is particularly so for those bearing greatest responsibility in the commission of international crimes. To establish individual criminal responsibility in international crimes several international tribunals and the International Criminal Court have focused on proving the relation between those bearing greatest responsibility and those who are physically closer to the victims. This so called offender-based perspective may be useful to show the link between chief offenders and their co-perpetrators, but it does not give any insight in the substantive meaning of their acts to the completion of the international crime as such.

Significance of actions
Willemien Hogewind argues that no sooner than the sub-crimes and vital criminal acts of a particular international crime have become clear the criminal contribution of individual perpetrators - particularly those bearing greatest responsibility - can be normatively determined. This offense-based approach is explored by performing a criminological case study as an interdisciplinary tool to analyze all acts necessary to commit the international crime. The hypothesis of the research is that by enlarging the scope from an offender-based to an offense-based approach more insight is gained into the significance of actions that comprise international crimes. To arrive at this offense-based approach a specific amount of selected case law is used that altogether shows the range of crimes and vital acts leading up to an international crime. Both the ICTY and the ICTR produced by far the biggest sum of different cases and will therefore be the two subjects of research.  

Methodology and outcomes
The choice of ICTY and ICTR case law aims at a collection of cases with similar and varying positions and functions of the main suspects per case. Furthermore, they will partly correspond and to a certain extent be dissimilar with respect to the area and period in which the international crime was committed. Besides the differences between Bosnia and Rwanda in the crimes and essential acts leading up to the various international crimes there are some similar characteristics. These common features of the process leading up to the respective international crime are investigated by means of a checklist. Questions that will be asked are for instance the amount of groups involved, the hierarchical relation between these groups, and any division of criminal acts and vital deeds such as the mobilization of co-perpetrators.

The outcome of this offense-directed research may influence current ideas about the legal approach towards individual criminal liability in international crimes. What this means for the practice of international criminal law depends as yet on the case study, the questions raised and the results produced.